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Show Chapter II Colonial Land Systems American land law is the product of English royal instructions, common and statutory law, and the practices and customs, as well as laws, of France, Spain, the Netherlands, and Sweden. The colonists from these nations brought their legal institutions and their land laws to the New World and at the same time initiated new policies very different from those in the homelands. They were to create a complex system of land law drawn from the experiences of all of these nations. Though not the first to establish settlements in the New World, the English, with their greater inclination to emigrate, their relative toleration of minority, religious, and European ethnic groups, and their superior economic and entrepreneurial talents were to have the greatest influence on the law, language, customs, religion, and economic institutions of North America. English trading companies and proprietors were given governing authority and control over land within prescribed boundaries. The laws of the Thirteen Colonies were required to be in harmony with those of England and were subject to critical examination and disallowance. Conflict and Control over Indian Lands None of the colonizing nations recognized the Indians individually or collectively as having anything equivalent to a fee simple title to the land. All regarded them as belonging to an inferior cultural group to be used or pushed aside as conditions seemed to warrant. Though ownership was not conceded, the right of aboriginal occupancy came to be acknowledged; in individual Colonies this right was bargained for and purchased by whites, commonly with the approval of the local government. With 13 Colonies exercising jurisdiction over the Indians and their occupancy rights, jurisdictional conflicts were certain to arise because colonial boundaries were indeterminate and some tribes had occupancy claims in more than one Colony. Individual purchases of Indian rights (the alienation of which was rarely understood by the Indians) and squatting by whites on lands which were conceded to be in Indian occupancy, together with the common practice of using liquor in trade with the Indians, produced unrest on the frontier and warfare that involved not just a few settlers but Colonies and whole empires. Measure after measure was adopted by the various Colonies in futile attempts to prevent unauthorized negotiations with Indians for portions of their land and to regulate trade with them. As early as 1634 Massachusetts ordered that no person should buy or attempt to buy land from Indians without leave from the court, and it later voided all purchases of Indian land made without permission.1 Virginia enacted in March 1657-8 "that no person or persons whatsoever be suffered to intrench or plant upon such places as the said Indians claim or desire until full leave from the Governeur and Council or commissioners for the place. ..." And in 1705 the House of Burgesses imposed a stiff 1 Roy Akagi, The Town Proprietors of the New England Colonies (Philadelphia, 1924), p. 27. 33 |
